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Sea Shepherd founder and anti-whaling activist Paul Watson has been in Greenland and awaits potential extradition to Japan.

The arrest relates to incidents in the Southern Ocean in February 2010. The charges against Watson include “accomplice to an assault” and “ship trespass”. Both relate to the by Pete Bethune, who was captain of the Sea Shepherd vessel Ady Gil. Bethune was detained on the Shonan Maru No 2 and returned to Japan for trial, where he received a . An international arrest warrant was issued for Watson in 2012.

At the time of the recent arrest on July 21, Watson’s ship had stopped for refuelling while en route to intercept a Japanese whaling vessel, the Kangei Maru. He was on board the , owned by the Captain Paul Watson Foundation he founded two years ago.

, following disputes with directors over the value of direct action and confrontation. He originally founded Sea Shepherd after falling out with Greenpeace for similar reasons.

His arrest brings the issue of whaling back to the fore. Despite a flurry of activity in the a decade ago, the issue hasn’t gone away. That’s because from the International Convention for the Regulation of Whaling and its decision-making body in 2019 and resumed commercial whaling.

What is an international arrest warrant?

An international arrest warrant, also referred to as a ““, is a request to law enforcement all over the world to locate and provisionally arrest a person.

The Red Notice for Watson is based on an arrest warrant or court order issued by Japan. Importantly, a Red Notice is not a finding of guilt and the presumption of innocence still applies.

Now the arrest has been made, . The request went to Denmark because Greenland is an autonomous Danish territory.

What is the basis for the charges?

Two international treaties provide Japan with a legal basis for the charges laid against Watson.

Under the , Japan can grant its nationality to ships, as it did with the Shonan Maru No 2. Nations have exclusive jurisdiction over ships flying their flag when that ship is on the high seas (international waters). This means Japan can treat the boarding of the Shonan Maru No 2 as if it happened on Japanese territory.

Japan may also argue the boarding of the Shonan Maru No 2 was an act of piracy. Under the convention, Japan would need to show the boarding was a case of:

illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed […] on the high seas, against another ship or aircraft, or against persons or property on board such ship.

The sticking point for Japan may be whether or not the boarding can be considered to be for “private ends”.

The convention for the may also apply. In short, this grants jurisdiction over certain types of offences when they occur on board a ship flying the nation’s flag. For example, Japan may argue the alleged conduct of Watson and/or his colleagues was “an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship”.

Will Denmark extradite?

Extradition is often governed by a specific extradition agreement between two nations, as well as by a nation’s own domestic law. For example, the in Denmark permits extradition in certain circumstances. However, it also has limitations on that power, including to prevent double prosecutions, where a person faces trial more than once for the same conduct.

Extradition will not apply to prosecutions of crimes that are not also an offence in Denmark, abandoned prosecutions, or where a court accepts there is a risk that the person concerned:

will be subjected to persecution affecting his life or freedom or otherwise of a serious nature because of his or her origin, membership of a particular ethnic group, religious or political beliefs or otherwise because of political circumstance.

The relevant court in Denmark can also decide that extradition is temporarily suspended on serious humanitarian grounds.

Extradition is as much political as legal

In many ways, extradition is a fusion between “executive power” and the powers of the courts and the prosecutors, as well as involving foreign policy considerations. For this reason, it can be as much political as legal. This is why we have seen calls from other countries, such as , for Denmark to abandon the arrest and not agree to extradition.

Political pressure can sometimes be effective in such cases, particularly in countries where there is ministerial discretion around whether to extradite.

What next?

Ultimately, Japan may choose to abandon its interest in prosecuting a warrant that is more than ten years old.

Or it may choose to exercise its full legal power in pursuing Watson, with the goal of deterring anti-whaling advocacy. However, this would likely attract criticism from other nations, given very few support whaling activity, and reduce willingness to cooperate with Japan on other extradition matters.

Either way, the tension between environmental advocacy and other commercial and legal interests is obvious. The law can – and should – find better ways to balance these interests, especially in the midst of an environmental .

Tamsin Phillipa Paige has previously received funding from the Australian Government.

Danielle Ireland-Piper does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.